Common law marriage is still marriage

I am amazed at the number of folks contacting my office who have inadvertently gotten themselves married via common law marriage. I am also amazed at the folks who ask how they can get common law married because they don’t want to go through the trouble or expense of a ceremonial marriage. Such questions or situations can only occur because folks misunderstand common law marriage. Within the general public common law marriage is considered some middle form of a relationship: more committed than mere cohabitation but less committed than ceremonial marriage. The thinking is:

cohabitation < common law marriage < ceremonial marriage

This thinking is not correct. The distinction between common law marriage and ceremonial marriage isn’t a distinction in the rights and responsibilities inherent in a marital relationship but in the method of proving a marital relationship. And the method of proving a common law marriage is vastly more expensive and complicated.

In Charleston County, where I live and practice, the cost of a marriage license is $70.00 and any person authorized to administer oaths–this includes Notaries Public–can perform the marriage ceremony. Many family law attorneys will perform marriages for little or no charge [I will for friends and former clients]. In contrast, proving a marriage was entered through common law requires a court case with a filing fee of $150.00–and often requires substantial attorney’s fees even when the “fact” of the marriage is uncontested.

No one should enter a common law marriage. Anyone wanting to be married should enter a ceremonial marriage. Folks not intending to be married shouldn’t fall into common law marriage in the expectation that they are entering a relationship with fewer rights and responsibilities.